PS 5-133: Possession of a Regulated Firearm

The Public Safety Code is the main source of criminal laws regarding gun possession by prohibited persons. Violations of section 5-133 are the most common gun crimes in Maryland along with the wear, carry and transport statute. In order to be charged with a violation of PS 5-133 there must be probable cause to believe that a person was in possession of a firearm, and that person was a disqualified individual. The law regarding possession of a firearm is basically the same as the law regarding possession of other contraband such as CDS. Possession means having control over something, whether it be actual or constructive. More than one person may have possession of the same item at the same time, so multiple people can be charged with possession of the same firearm. If a person is not in actual possession of a gun, then charges can result if it is established that he or she as the power and intention to exercise control over the gun. The State must prove the defendant knowingly possessed the firearm, as it is not a strict liability crime. Once possession has been established the State must then prove the defendant is a disqualified individual. There are a host of reasons why a person can be disqualified including a conviction for a disqualifying crime or a conviction of a crime that carries more than 2 years in jail. Fugitives and those who have been found incompetent or not criminal responsibly are also considered disqualified, as well as anyone who is currently a respondent in an active protective order. A person under the age of 30 with a juvenile delinquency finding for a disqualifying offense would also be prohibited from possessing a firearm. Minors under the age of 21 are prohibited from possessing firearms unless under the direct supervision of and adult or instructor.

The driver of a vehicle is pulled over for a traffic infraction and the police locate a firearm on the floor of one of the back passenger seats. The driver and the passenger could be charged with transporting a handgun and if either has a disqualifying criminal conviction, could also be charged with a violation of PS 5-133. Another common example occurs when the police execute a search warrant at a person’s residence and find firearms. If the person who is the target of the search warrant or a resident of the home, then he or she will be charged with a PS 5-133 violation if there are disqualifying convictions or other factors prohibiting gun possession.

CR 4-203 is the basic handgun possession statute that prohibits wearing, carrying or transporting a firearm. Those who do not have a concealed carry permit must follow strict rules to transport firearms lawfully and can never legally have a handgun on their person outside of the home or gun range. In recent years lawmakers have raised the maximum penalty for this offense from 3 to 5 years in prison and these cases are a top priority for law enforcement and prosecutors.

In all possession cases the defendant may be able to argue a lack of knowledge of the firearm’s presence. This defense is strong in cases where multiple individuals are charged with possessing the same gun, and typically juries will be reluctant to convict a person for possessing a gun unless it was on their person, or they were the only one in the area. Other defenses include arguing that the defendant was not a disqualified individual and that the gun was not a working and operable firearm.

The potential penalty for a violation of PS 5-133 depends on a variety of factors. Subsection (b) and (d) include scenarios where a person is disqualified due to a misdemeanor conviction, is under 21 or is a respondent in a protective order. This subsection carries a maximum penalty of 5 years in prison and is considered a misdemeanor. PS 5-133 (c) is a felony with a 15-year maximum penalty and can be charged if the defendant has a prior conviction for crime of violence or a felony drug offense. If the prior conviction was less than 5 years old or even if the defendant was on parole or probation less than 5 years before the new offense, the State could seek a 5-year mandatory prison sentence that is not parole eligible. For the purposes of this statute a PBJ is considered a conviction for all crimes of violence and for second-degree assault charges that are domestically related.

Public Safety Code gun violations have been a major point of emphasis for prosecutors and judges over the last decade due to escalating gun violence in the Baltimore D.C. Metro Area. Additionally, the federal government has been vocal about its desire to intervene in state gun cases to provide for harsher punishments. Benjamin is an experienced Maryland gun lawyer who has successfully defended hundreds of firearm offenses across the state. He specializes in Public Safety Code charges and is available 7 days a week for a free consultation.